Opinion
February 23, 1993
Appeal from the Supreme Court, New York County (Dorothy Cropper, J.).
Defendant, acting with an unapprehended accomplice, was apprehended after she stole a wallet containing cash from the victim's shoulder bag in a store. During a struggle with a security guard, she bit him in the hand and scratched his arm. At trial, this complainant testified to his substantial pain, that he was transported to a hospital by ambulance, that a tetanus shot was required, and that the use of his arm was restricted for the following two weeks. A responding police officer testified to his observation that the bite mark was bleeding and that the security guard was visibly upset about his injuries. This evidence provided sufficiently credible and objective proof of substantial pain with respect to the assault count to submit the question to the jury (see, Matter of Philip A., 49 N.Y.2d 198, 200; People v Soto, 170 A.D.2d 705, lv denied 77 N.Y.2d 967), and we find no reason to disturb the jury's findings on appeal.
Defendant's challenges to the court's supplemental instructions on substantial pain and on the element of force for the robbery count are unpreserved for review as a matter of law (People v Robinson, 36 N.Y.2d 224), and we decline to review in the interest of justice. If we were to review, we would find the claims to be meritless.
Concur — Milonas, J.P., Ellerin, Kassal and Rubin, JJ.